You've asked a very good
As I am sure you know,
Rule 6(e)(3)(C)(iii) allows the transfer of grand jury materials from
one grand jury to another. This is, of course, normally done (a) when
the first grand jury failed to indict or its term ended before it could
indict/conclude an investigation; (b) when two grand juries are working
on the aspects of the same investigation and so need to share
information; and (c) in the rare occasions when a grand jury has been
investigating an offense and then finds that it does not have
jurisdiction to indict because the offense was committed in another
district. (For the latter proposition, see, e.g., In re May 1972 San
Antonio Grand Jury, 366 F.Supp. 522 (W.D.Tex. 1973).) Rule 6(e)(3)(C)(iii)
was clearly, I think, intended to authorize evidence transfers in these
What you are asking,
though, is something different, e.g., whether one grand jury can, in
effect, take deposition testimony to assist another. The difference
here, of course, would be (if I understand your question correctly) that
grand jury A has no interest in the testimony, since it is not relevant
to any matters which grand jury A is investigating; grand jury A is
subpoenaing the witness and asking the questions simply as a matter of
courtesy, to assist grand jury B, which is investigating matters as to
which the testimony is relevant.
Like you, I have not
found any cases directly on point (though I have only had a little time
in which to look). I did find In re Grand Jury Investigation of Banana
Industry, 214 F. Supp. 856, 859-860 (D.C. Md. 1963), which addressed a
somewhat similar situation and found it improper. As the court said,
No doubt it
would be convenient for the Division to present to the Grand Jury in
California a summary of the testimony heard by the Grand Jury in
Maryland. But convenience is not the only consideration.
Fairness to the persons whose conduct is being investigated must also be
considered. The Court should foreclose any possibility that even an
inadvertently unfair summary of the testimony taken before the Grand
Jury in Maryland might be presented to the Grand Jury in California.
It is one
thing for the Division to prepare for the use of a grand jury a digest
of the testimony which that grand jury has heard, see United States v.
United States District Court, 4 Cir., 238 F.2d 713, 721, but quite
another thing for the Division to seek an indictment not upon testimony
which the grand jury has heard, but upon selected portions of the
testimony of one or more witnesses given before another grand jury.
Other portions of the testimony of a witness may qualify, explain or
even contradict what he said at one point in his testimony.
While one can distinguish
this as a pre-Rule 6(e)(3)(C)(iii) case, and as a case in which the
grand jury did not get the whole transcript of what the witness aid, I
think you can use it to argue that the scenario you propose is improper
because it deprives the indicting grand jury (grand jury B) of the
opportunity to observe the witness' demeanor and to ask follow-up
questions based on the evidence that grand jury has heard and as to
which grand jury A was ignorant.
I also think one can
argue that this scenario is implicitly contradicted by the provisions of
Fed.R.Crim.Pro. 17(e)(1), which allows the nationwide service of
subpoenas. I have not had a chance to review the history of the rule,
but I think it clearly supports the premise I note above, e.g., that a
grand jury should hear directly from witnesses having information about
the matters it is investigating.
Finally, I think one might even be able to argue that this could
constitute an abuse of the grand jury process. After all, a grand jury
subpoenas a person to testify because it wants to hear what information
that person has which is relevant to matters it is investigating. In
the scenario we are discussing, grand jury A has no legitimate purpose
for subpoenaing and interrogating the witness, other than to accommodate
grand jury B. I would argue that is improper.
Let me know if you'd
like to discuss this further. As I said, I find it a fascinating
question, and I want to include a discussion of it in the new pocket
part for the treatise. Thank you for bringing it to my attention.